Yet another twist in the trial of Kenyan President Uhuru Kenyatta. Yet another win for victory for critics of the International Criminal Court (ICC). And yet another delay in the pursuit of justice and accountability for Kenya’s 2007/08 post-election violence.

The Kenya trials have already been ravaged by incessant controversy, repeated delays and a nasty war of words between Kenya, its allies and the Court. Now, ICC Chief Prosecutor Fatou Bensouda has declared that the prosecution does not have enough evidence to proceed with Kenyatta’s prosecution and, as a result, is seeking an adjournment in the trial. The Prosecution’s reasoning is based on the fact that some of its key witnesses were no longer reliable and thus “the case against Mr. Kenyatta does not satisfy the high evidentiary standards required at trial.”

From the outset of her statement, the Prosecutor sought to make it clear that her decision was based on legal reasoning and not external political pressure:

My decision is based solely on the specific facts of this case devoid of extraneous considerations. As Prosecutor, I have consistently stated my actions and decisions are at all times strictly guided by the evidence in accordance with the Rome Statute legal framework. This recent decision is no different. It is my professional duty to react, and to take the necessary decisions when the state of the evidence changes, as it has in this case.

In truth, it won’t really matter whether the decision was legally based or not. On the back of the Assembly of States Parties conference where states agreed to accommodate Kenyatta’s request to avoid being present at trial, as well as significant pressure on the Court to ease-up on Kenyatta and his deputy, William Ruto, this decision will ultimately be perceived as political. And to a large degree it is a response to political developments – especially if the Prosecution is correct and its host of problems with evidence in the Kenya cases stems from Kenyatta allies intimidating and tampering with witnesses.

Bensouda also stated that this was not the end of her efforts to bring justice for post-election violence in Kenya:

“To the people of Kenya, my decision to apply for an adjournment today was not taken lightly and I have explained fully to the Judges the reasons for my exceptional decision. I have and will continue to do all that I can to realise justice for the victims of the 2007-2008 post-election violence.”

Will we ever see Kenyatta in an ICC courtroom again? (Photo: ICC)

Curiously, Bensouda’s statement does not say that pursuing justice in Kenya requires prosecuting Kenyatta. Indeed, the most bizarre thing about the Prosecutor’s decision is that it appears to be a request for an indefinite delay to the trial (Update: this has now been clarified by the Prosecutor – see below). There is no indication as to when the Prosecution will be prepared to proceed with proceedings – or will even aim to be ready. Judges are likely to request the Prosecutor to be more specific about what type of time-frame she has in mind. After all it would likely be a breach of fair trial standards – not to mention justice – to have an open-ended threat that prosecution will continue at some undefined point in the future. The Prosecutor needs to be much more clear about what the plan is. If that’s not possible…

… of course, the other alternative is to withdraw charges altogether. This wouldn’t be unheard of. Just days after Kenyatta won the Presidential elections in Kenya, the Prosecutor withdrew charges for Francis Muthaura, a former ally of Kenyatta.

This is not a good day for the Court. Ironically, it would have been better if the UN Security Council had invoked Article 16 of the Rome Statute and deferred the prosecution of Kenyatta and Ruto for 12 months, a move that Kenya sought earlier this year and which I argued might not be such a bad thing for the Court. It would have bought the prosecution (at least) a year to prepare for Kenyatta’s trial. And blame would have been on the Security Council and not the Court.

It remains unclear who is to blame. There are, generally speaking, two theories: First, that the Kenyan government is to blame. They have undermined the trial and the Court from the beginning, intimidated witnesses, and sought to politicize proceedings. Second, that the Prosecution is to blame. Under former Prosecutor Luis Moreno-Ocampo, they over-stretched their mandate in Kenya, built a shaky case and now have been unrelentingly rigid in their pursuit of accountability despite the fact that Kenyatta and Ruto were democratically elected.

So which theory is right: is Kenya to blame or is the Office of the Prosecutor (OTP) at fault? It is probably a little bit (or a lot) of both.

UPDATE: In a motion now available online, the Prosecutor has clarified that she is seeking a three-month adjournment and provides details into the problems facing the case against Kenyatta. The prosecution also requested judges to convene a status conference at the end of January in order to update the Court as to “progress of the investigative steps”. Still, the OTP still sounds rather unsure as to whether they will be able to produce sufficient evidence to proceed with the trial:

The Prosecution therefore seeks an adjournment of the provisional trial date for three months, which will enable it to undertake additional investigative steps –including those not previously open to the Prosecution–to determine whether a case can be presented to the Chamber that establishes the Accused’s guilt beyond reasonable doubt.

On the surface, this might sound counter-intuitive. After all, a delay should be exactly what Kenyatta wants. But Kenyatta may want to the trial to proceed when the prosecution is at its weakest. Doing so might provide his defence with the best opportunity to have his trial thrown out altogether.

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About Mark Kersten

Mark is a researcher, consultant and teacher based in London. His research focuses on the nexus of international criminal justice and conflict resolution. Specifically, Mark's work examines the politics of the International Criminal Court and the effects of its interventions on peace, justice and conflict processes.

Indeed, there have been a lot of attacks (on both sides), as Mark has noted, but little reasoned critique. Exchanges of blows, darts and occasional arguments on Facebook or other social media do not count for much (although some of us have done a halfway decent job there).

The Kenyan print media since 2009 have never been willing nor at all able to print a single decent and thorough report on the REAL contents of the two ICC cases. And on the other side, the academic legal journals content themselves with self-serving academic _Glasperlenspiele_ about modes of criminal participation, imputation, JCE and comparable artsy navel-gazing, which in turn has led to the lamentable situation that the pre-trial and trial chambers of the ICC almost completely ignore the – meanwhile copious – corpus of literature, and will rather chart their own paths (not to speak of OTP, whose briefs disregards the existing legal scholarship even more).
The blogosphere could be an important partner therefore, and at times it has been; although Opiniojuris – that never relents in throwing mud at the ICTY – is extremely concerned about not allowing any substantiated critique, leave alone sharp criticism of the ICC and its players.

I am however a bit reluctant to speak of a “win for victory for critics”, as Mark did in his incipit. There are a few critics who are set against international criminal justice and accountability in general, and who never miss an occasion to attack it (Thijs Bouwknegt comes to mind, and Alex de Waal), but in most cases, legal critics seek to improve the situation, not to win a battle. So, if we decry the low level of argument and expertise of the prosecution’s Common lawyers (far inferior to the court chambers and their legal officers), it is because we wish for better dogmatics and sounder arguments from capable Civil lawyers (that were underrepresented in the Kenyan case), not because we would like the prosecution to “lose”.

There have been some nasty incidents that have damaged the credibility of OTP in the past. One was an incident of undercover playing of [some elements within] prosecution into the hands of defence at a certain moment during the pre-trial phase. These integrity leaks may have been closed by now, but they raised a whiff of pungent stench. The other one was the back-handed deal that Fatou Bensouda struck with the then co-accused Francis Muthaura, a deal which caught the trail chamber completely by surprise; judge Ozaki was only informed via phone by OTP on the morning of that fateful day. That was a surprise move which one would more expect of ruseful and cunning defence lawyers than of a prosecution patterned after continental examples of neutrality, constituted as a “court organ”. The trial chamber was tricked and wrestled down by OTP in that instance, and the judges had no other chance than to agree. The judges would be right to feel resentful and suspicious after this incident, which certainly did not serve the interests of justice and truth.
OTP did faithfully keep its side of the deal agreements, but it is not so sure whether and inhowmuch Muthaura did. His defence lawyer immediately afterwards changed over to the Ruto side (which move OTP did not expect), and Francis Muthaura himself nowadays does not seem to be quite as mortally ill and dying, as he appeared then. One might be forgiven to see shades of the “humanitarily released” Libyan convict from the Lockerbie case.

Admittedly, it is true that Muthaura was in a good position to allege that by virtue of his high and influential, and extremely well-connected former position, he had ALL the material needed to frame Kenyatta, and that he would equally have had knowledge of (and allegedly access to) all the witnesses that OTP needed to _really_ make its firm case against Kenyatta, but which they did not yet have at their own disposition, since the Kenyan judiciary had been ordered by the government to block this avenue. Unfortunately, few of these promises on which Bensouda relied, seem to have materialized so far.
The reasons for the lack of suitable steadfast witnesses – and OTP’s failure in moving the really important witnesses to testify at all – are probably on one hand, a dire lack of funding for longtime witness protection and lasting relocation of whole extended families (at least lack of sufficient “official” budgeted ICC funds, and we should not speculate about other monies – while such funds exist outside the court framework, and at terms are offered, they can backfire nastily, and can actually jeopardize the credibility of a witness). And on the other hand, a VWU (Victims and Witnesses Unit) whose performance was…. well, was quite certainly _less_ than stellar. If I were a Kenyan police witness, I would not trust my life and my family to the tender ministrations of my European “colleagues” in this ICC unit. Enough said. As to the Kenyan local counterpart of the foreign-funded “WPP” (consultant was the South African Gerhard Rooyen), the then ambassador Ranneberger had already cabled all there was to be said about it; and the situation since 2010 has – if anything – worsened. To consider Alice Ondieki’s Kenyan crew a “witness jeopardization and witness elimination outfit”, might not be 100 % correct; but it more at least be far more correct than the opposite.

The confirmation of charges hearings were carried live nationally in Kenya, the content of the ICC cases cannot thus be reinvented as new lies to fit the tale which the OTP has miserably failed at. The Kenyan media cannot be blamed for the OTPs failings and for exposing the same. Prof Makau Mutua, Harvard graduate, law school dean at SUNY, ICC mole has had a weekly column in mainstream Kenyan media to propagate any pro-ICC propaganda to anyone gullible enough to believe it. OTP representatives have been equally covered by Kenyan media on their spurious allegations. Kenyans have seen, agreed or disagreed. Attempting to force Kenyans to swallow hook, line and sinker everything the OTP claims amounts to wishful thinking.

Mark,
You stated, “And to a large degree it is a response to political developments – especially if the Prosecution is correct and its host of problems with evidence in the Kenya cases stems from Kenyatta allies intimidating and tampering with witnesses.”

I’m sure you will have noted by now that the prosecution has only made such allegations in the public domain, geared at improving positive perception of its fatally flawed and flailing cases that continue limp on the basis of the technicality of the motions of a trial.

The OTP has never made a court filing making such claims at the ICC, and when it did, it was against Walter Barasa, a former OTP witness recruiter, possible witness coach, unrelated to the current Kenyatta case. It is thus a desperate attempt to clutch at straws to continue to cite witness bribery, intimidation and tampering when there is not a single witness or filing before the ICC that substantiates the same. In Barasa’s case one of the witnesses alleged to have been bribed has also spilled the beans on how they were coerced into framing Barasa with bribery for the OTP and has also consequently withdrawn.

The truth is the witnesses have come forward with their stories of what would ordinarily qualify as inducement or bribery by the OTP (relocation to western countries, education for their children, monthly stipends and housing) in exchange for regurgitation of ICC prepared testimony. The sworn confessions of several former OTP witnesses are in the public domain. The Kenyatta – Muthaura case collapsed when former OTP witness 4 swore his affidavit admitting his lies. It is that simple, there was no back handed deal with Muthaura, the case for all intents and purposes collapsed in 2012. All the OTP did between then and now was recruit coached witnesses or witnesses it knew were criminals willing to lie in exchange for immunity from prosecution in Kenya (hypocritical in the sense that the OTP claims it is working for victims justice) and engage in public relations gymnastics and pronouncements targeted at the court of public opinion.

As one commentator noted elsewhere:
“The recanted evidence of OTP 4 was used over 164 times during the confirmation of Charges against President Uhuru Kenyatta in September 2011.”

I wrote above:
“And on the other hand, a VWU (Victims and Witnesses Unit) whose performance was…. well, was quite certainly _less_ than stellar. If I were a Kenyan police witness, I would not trust my life and my family to the tender ministrations of my European “colleagues” in this ICC unit. Enough said.”

Errr… by the way. As to the correctness of my assessment of the bad performance of the Victims and Witnesses Unit, you *now* might also compare here. Just might:

I am just about to read that report; but, yes, you were a bit harsh there. A particular advantage to being in Europe, as opposed to, say, Kenya, is that one gets to stay alive.

I do not know of the inner workings of the VWU, but, on the basis of deep, first-hand experiences and observations, I would say that *anyone* dealing with witnesses from Kenya’s culture or impunity and corruption would have their hands full.

On impunity: I have no doubt that the first thing the suspects did with the names of witnesses was to send them to “hunting teams”, along with large bags of cash, guns and knives, and anything else that was considered necessary for “what has to be done”.

On corruption: I have no doubt that many of the witnesses in these cases are genuine and very brave people who have gone through a lot and are still going through a lot. Nevertheless, I should very astonished if there were not a few who simply saw a chance to do what Kenyans call “eating”, which in this case would consist of leveraging real or imagined information in return for one of said bags. (And keep in mind that two of the suspects have some of the deepest pockets in Kenya.) The latter group, while claiming protection would also be working to be “discovered” by the other side. No doubt the OTP is aware of that, but it is still disturbing that one or two apparently managed to sell a good story for as long as they did. That said, we don’t know all the details and it could be that late “admissions” of lying could also be a consequence of threats and intimidation.

At any rate, I have no doubt that with Kenya the VWU has been faced with enormous and unprecedented challenges, especially given that for a variety of good reasons, it appears not to operate in the same manner as, say, a witness protection program dealing with less complex and shorter trials.

I have now read that review. It certainly doesn’t paint a very happy picture of the VWU, but I remain convinced that some of the Kenyan elements would have been a trying lot for *any* witness protection scheme.

On the Mutahura-Bensouda deal: Bensouda should have demanded the goods right up-front. Anyone would a good knowledge of certain Kenyan historical and tribal factors and, more importantly, the how Uhuru and Muthaura are connected, via “The Owners of Kenya” would have been amused at the idea of Muthaura knifing Uhuru.

Yes, Muthaura’s recovery has been truly remarkable. No doubt many were touched by the image of a small, old man plaintively telling the court the court that he had been kept in government for too long, just wanted to go home and enjoy a quiet retirement, etc. He is now a very sprightly fellow, and his plans for his 70s do not appear to include any quiet retirement: Uhuru is just about to give him a new, major job in a wholly-owned government organization. Just as well those files got destroyed in a fire or fell off the post-office truck …

Yes. You see how afraid Uhuru Kenya is of Muthaura and what beans he could still spill. That is one very big, very fat bribe. And indeed, your assessment that OTP may have been too naive in their dealings in general, and in their dealings with Muthaura in specific, seems to be coroborated ex-post… somewhat sadly.

Both sides are to blame but with most of the blame to be taken by a government that shouls be responsible for the well-being of its people. The Kenya government (GoK) clearly went out of its way to hinder the OTP and, I believe, certain elements within it were responsible for helping track down and “sort out” some witnesses. GoK has never really been interested in any type of accountability over the PEV and has done everything possible to avoid dealing with those responsible, from the lowest level to the highest, with the possible exception of some elements in GoK wishing to settle scores with Ruto. The behaviour has despicable to the extreme. Coups and everything that accompanies them are obviously very undesirable, but from first-hand observations, including places like Kenya, one should never be surprised when even the most seemingly stable African country descends into an abyss of violent mayhem. Today’s Kenya is divided between those who came together to “save our leaders from the ICC” and the rest. However, it is important to note that even within the former the fundamental issues (such as conflict over land) have not been addressed. Kenya did set up a “Truth, Justice, and Reconciliation” commission whose mandate was to look into all problematic issues, from 1963 (independence) to around 2008 (the PEV). Earlier this year, it produced a big, fat report. President Uhuru avoided “officially receiving” it for quite some time, and when he did, he promptly buried it. As usual, the underlying resentments will linger until they boil over. Again.

And God gave Noah the rainbow sign: “The water didn’t work. Next time, it’s the fire.”

For its part the OTP has failed on several fronts. First is what appears to be the initial failure to understand the positions that Muthaura and Kenyatta had within the power structure in Kenya. This led to the hard-to-understand belief or expectation that GoK would somehow help in getting evidence against the two.

Second is what appears to be a failure to understand Kenya’s corruption-driven culture, in which it should have been expected that witnesses would be offered and would take bribes to “recant” or withdraw, be intimidated or eliminated, etc. This aspect is closely tied to the quality of the VWU’s work.

I had enough confidence in the OTP to believe that they had things under control, but about a year ago, after an evening with sufficient “extract of the grape”, I wrote them a letter in which I explained Kenyan culture and what to expect in 2013: once the witness identities are released to the Defence, those witnesses would be tracked down and bribed, threatened, or “disposed of”. And so forth. The letter was uninvited and, naturally, its receipt never acknowledged.

Shortly after the fiasco with Witness 4 (Muthaura case), I was sufficiently incensed that I wrote another uninvited (and never acknowledged) letter. In that one, I briefly said: you need to set an example and prosecute this guy for lying; if you don’t you will end up with others of the same type. I’m sure they did not need my input and no doubt considered such prosecution, but still!

Right now what I find disturbing about the OTP side—and, of course, we don’t have all the information—is that the core of such a large and complex case apparently hinged on just one or two people. The prospects of finding a replacement for Witness 12 look dim at this stage, and even if one is found the Defence will not doubt ask for yet more time to conduct its investigations. This last is especially significant because, in addition to interference by GoK and other elements associated with the accused, time has been the other factor that has wreaked havoc in this case.

Looking at the prosecutors, I consider Bensouda to be a fantastic one who has done a (relatively) great job with the shabby deck of cards she inherited. Ocampo, it appears, failed to totally failed to appreciate the depth of impunity and corruption in Kenya. As a result, he took a somewhat cavalier and even naïve approach in matters; for example, he ought to have moved faster right from the beginning and on the basis that GoK would never really help him (except perhaps with Ruto). Yes, I am being a bit unfair there, since he had to give GoK the opportunity to show that it was “willing and able”; but at the very least he should have pursued a Plan B option right from the git-go.

What happens now? The demoralizing effect on other witnesses should not be under-estimated, and some could well withdraw, although the Mungiki types are vicious, criminal elements who have fewer options elsewhere. The real tragedy here, though, is that there might never been any accountability over the Kenyan PEV. At the *lowest* level, fewer than 20 people have been prosecuted and those mostly for minor crimes; ironically, just a few months ago, the director of prosecutions had the cheek to say that they did not have the evidence to prosecute anyone … because the OTP had all of it and wasn’t sharing!

As an African, I especially lament what, in general, failures to prosecute those most responsible for large-scale crimes (of the type we are now discussing) means for the future of the continent; and in this regard, the actions by the African Union have been singularly unhelpful. Rather than a reduction in the mayhem that bedevils the continent, from north to south and east to west, and seemingly without an end in sight, I should not be surprised if over the coming decades we saw some more. Inevitably, the lessons that the “average citizen” will draw from the failures of international justice is that “if you want justice, then find a gun or machete and get your own bl**dy justice”. But it has been that way for some time, and it has always been bloody. And the recent ASP has not helped with its politics will trump all and that even though all human are equal the mighty are a little bit more equal. It was hardly the most positive message to send to victims of such crimes, and it partly explains why the likes of Gadaffi end up receiving rough-and-ready justice. What, ask the victims, are the alternatives? The ICC?

Interesting reading! What strikes me who was in Kenya during the election violence and have lived and acted in Kenya for 28 years is that none of you reflects on that ICC might have been wrong the wrong and indicated the wrong people in the first place!?

Ethnic violence is normally an act of the majority attacking a minority not the opposite! Who ever planned the violence in 2007-08 (If such planning actually took place) should have a lot of violence where his/her ethnic group is the majority! Or am I wrong?

Mr Kenyatta is from central province in Kenya and in the Waki report it is clearly stated that out of the 1330 people that lost their life during the post election violence only 5 died in central province and 3 of those where shot by police. Indicating that central province was peaceful and where people originating from central where involved in violence it was in areas where they where the minority, indicating that they actually where defending themselves! Out of 650 000 people who where homeless during the violence over 500 000 originated from central province and they have had their home in areas where they where minority again supporting the fact that majorities attack minorities not the opposite!

I was shocked when I first saw that out of 6 suspects listed by ICC, 2 where from central province and none from the areas where the violence actually started or from the ethnic group of the person who on world TV called for the mass action that started the violence in the first place! My view is that western world who finance ICC should investigate ICC and stop this nonsense! We have to live up to our own mistakes and not blame African governments haphazardly without finding out facts first! We are together with ICC making a very bad example at the moment!

Listening to head of OTP Fatou Bensouda, that one on the key witness received bribe in order to be a witness, also and using my common sense and knowledge of street laws, these what
I think, OPT Fatou Bensouda must tell us:

1. Can she tell the public, who gave out the bribe to the witness and why bribe, if the OTP were sure of what they were doing during their investigation in Kenya.

2 Does the head of OTP, came to know that there were foul played during the investigation when she got the office?

Moreno Ocampo
1. So then Mr Moreno Ocampo has something to answer, as we know people lost the life no even to mention the lost of thousands who lost their livelihoods.
Here are the question I thinks Moreno Ocampo must answers.

2. How the key witness got bribe and by whom?

3. All these evidence against the accusers were compiled by office of OTP under Moreno Ocampo why Ocampo did not do his job properly before?

4. Moreno Ocampo must be taken into account for failing to help justice against the victims of Kenya election 2007-8.

5. Moreno Ocampo must be investigate how he conducted investigations when he was in Kenya.

6. Moreno Ocampo owed the ICC and International communities for putting the ICC into disputes and give powers to those who opposed/oppose ICC.